Citation Nr: 1321647 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 10-39 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine with complaint of sciatic left lower extremity, evaluated as 20 percent disabling prior to October 26, 2012. 2. Entitlement to an increased rating for degenerative disc disease/intervertebral disc disease of the lumbar spine, evaluated as 60 percent disabling from October 26, 2012. 3. Entitlement to an increased disability rating for sciatica of the right lower extremity, evaluated as 10 percent disabling prior to October 26, 2012. 4. Entitlement to an increased disability rating for sciatica of both lower extremities from October 26, 2012. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued a disability rating of 20 percent for degenerative disc disease of the lumbar spine with complaint of sciatic left lower extremity, and continued the 10 percent rating for sciatica of the right lower extremity. A video-conference hearing was held in August 2012 before the undersigned Veterans Law Judge (VLJ). A transcript of the testimony is in the claims file. In September 2012, the Board remanded the case for further development. It now returns for further appellate review. In February 2013, the Appeals Management Center (AMC) issued a rating decision granting an increased rating of 60 percent for degenerative disc disease/intervertebral disc syndrome of the lumbar spine, effective October 26, 2012 and awarded a 100 percent rating for loss of use of both lower extremities effective October 26, 2012, with appropriate special monthly compensation awarded as well. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of increased ratings for degenerative disc disease of the lumbar spine with complaint of sciatic left lower extremity prior to October 26, 2012 and sciatica of the right lower extremity prior to October 26, 2012, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. For the period from October 26, 2012, the Veteran's degenerative disc disease/intervertebral disc syndrome has been assigned the maximum schedular rating of 60 percent, which adequately contemplates the symptomatology associated with his back disability. 2. For the period from October 26, 2012, the Veteran has been awarded the maximum rating assignable for sciatic impairment of the lower extremities based on loss of use of the lower extremities. CONCLUSION OF LAW 1. For the period from October 26, 2012, the criteria for an evaluation in excess of 60 percent evaluation for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.71a, Diagnostic Codes 5242, 5243 (2012). 2. For the period of the claim from October 26, 2012, the maximum 100 percent rating has been assigned for loss of use of both lower extremities, and no further case or controversy exists. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5110 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, a January 2010 letter provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, private treatment records, and VA examination reports. Pursuant to the September 2012 Board remand, the Veteran was asked to provided information concerning treatment providers in October 2012 letter. The Veteran responded, identifying three private providers: Drs. Gleason and Malloy, and a chiropractor, Dr. Bowcock. Dr. Gleason submitted treatment records, which have been associated with the claims file. Dr. Malloy responded with a statement that he had no treatment records for the Veteran. The AMC twice attempted to obtain the records from Dr. Bowcock, in February 2013 and March 2013. However, Dr. Bowcock did not respond. The AMC informed the Veteran of these attempts and results and notified him that he could also submit records from Drs. Malloy and Bowcock. In May 2013, the Veteran submitted a report from Dr. Bowcock dated December 2012. Also pursuant to the Board remand, the Veteran's VA treatment records from January 2010 to January 2013 were obtained and associated with the electronic claims file. The Veteran has not identified any additional outstanding records that have not been requested or obtained. Additionally, the Veteran was afforded a VA examination in October 2012. Therefore, the Board finds that the RO/AMC has substantially complied with the previous remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ identified the issues and asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria for a higher rating. Moreover, the Veteran volunteered his treatment and symptom history. In addition, the VLJ asked clarifying questions regarding where and by whom treatment was provided in order to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. On remand the VLJ provided the Veteran an opportunity to provide the names of his treatment providers so that those records might be obtained. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that there is no prejudice to the Veteran in deciding this case and that no further action pursuant to Byrant is necessary. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so by providing evidence and argument. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, supra. The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45; Mitchell, supra. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Spinal disabilities are generally rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), which applies to Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a. The following evaluations are to be assigned for spinal disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The maximum evaluation assignable for limitation of motion under the General Rating Formula is 40 percent. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. As the Veteran is in receipt of a 60 percent rating from October 26, 2012, and is only service connected for his lumbar spine, there is no basis for a higher evaluation under the General Rating Formula. The rating schedule also includes criteria for evaluating intervertebral disc syndrome (IVDS). Under Diagnostic Code 5243, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243 and Note. In pertinent part, the IVDS Formula provides a maximum rating of 60 percent for incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Under 38 C.F.R. § 4.71a, Diagnostic Code 5110, a 100 percent rating is assigned for loss of use of both feet. Special monthly compensation is also to be awarded. The Board notes that the February 2013 rating decision that granted the 100 percent rating also awarded special monthly compensation based on loss of use of both feet, as well as an additional rate based on his back disability being rated 60 percent. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Degenerative Disc Disease of the Lumbar Spine As noted above, a February 2013 rating decision awarded a 60 percent rating for the Veteran's degenerative disc disease of the lumbar spine effective October 26, 2012, under Diagnostic Code 5243 and the IVDS Formula. The 60 percent evaluation was assigned based on the findings of the October 26, 2012 VA examination. During that examination, the examiner found that the Veteran had IVDS of the thoracolumbar spine, with at least six weeks of incapacitating episodes over the last twelve months. It was noted that the Veteran's forward flexion was limited to 20 degrees, and he reported painful motion in all directions. Other than his lower extremities, the examiner noted there were no other neurologic abnormalities associated with his thoracolumbar spine. As noted above, the 60 percent rating is the maximum schedular rating assignable for the Veteran's lumbar degenerative disc disease/IVDS. As he is not service connected for any other segment of the spine, a 100 percent rating based on ankylosis of the entire spine cannot be assigned. In any event, he is not shown to have ankylosis of his lumbar spine. From the same date, the Veteran's sciatica of the lower extremities is separately rated for loss of use of both lower extremities. Thus, symptomatology and functional impairment related to his legs cannot be considered in evaluating his lumbar spine disability. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). In summary, the Veteran is in receipt of the maximum schedular rating for his degenerative disc disease/IVDS of the thoracolumbar spine, and a higher rating is not warranted. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. Indeed, the rating criteria under the IVDS Formula contemplate repeated or extensive periods of incapacitating episodes of IVDS, which considers both orthopedic and neurological symptoms. Moreover, the Veteran is separately rated for loss of use of his lower extremities, notwithstanding that his 60 percent rating for IVDS already contemplates neurological symptoms. Accordingly, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. B. Sciatica of the Lower Extremities from October 26, 2012 The February 2013 rating decision recharacterized the sciatica of the right lower extremity and left lower extremity into a single disability and awarded a 100 percent rating based on loss of use of both lower extremities effective October 26, 2012. Special monthly compensation for loss of use of both feet was also assigned from that date. The award of a 100 percent rating constitutes a total grant of benefits assignable for sciatica of the lower extremities from October 26, 2012. As such, there is no further case or controversy for sciatica of the lower extremities from that date. Accordingly, the appeal for an increased rating for sciatica of the right lower extremity, as well as the appeal concerning sciatica of the left lower extremity, from October 26, 2012, is dismissed. See AB v. Brown, 6 Vet. App. 35, 38 (1993) ("[O]n a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded.") (emphasis added); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). ORDER For the period from October 26, 2012, an evaluation in excess of 60 percent for degenerative disc disease/IVDS of the lumbar spine is denied. For the period from October 26, 2012, the appeal for an increased evaluation for sciatica of the lower extremities is dismissed. REMAND For the period prior to October 26, 2012, the Board notes that less than the maximum rating was assigned for his degenerative disc disease of the lumbar spine with left leg sciatica and for the separately rated right leg sciatica. Thus, both issues remain pending for that period. See AB, supra. The Board finds that additional development is necessary. In VA treatment records dated prior to October 26, 2012, it was noted that the Veteran was seeing a private neurologist, Dr. Donald Marks at Tufts Neurology for treatment and evaluation of his lower extremity neurological impairment. The file does not include records from Dr. Marks. As these records would clearly be relevant to the question of the level of impairment of his sciatica of both lower extremities for the period prior to October 26, 2012, remand is necessary. The Veteran is hereby advised that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board notes that VA outpatient reports indicate that records dated March 24, 2011 from Dr. Marks were reportedly scanned into VISTA imagining in May 2012. Those records should be obtained through VISTA imaging and placed in the claims file or electronic VA file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to complete a signed authorization form for Dr. Donald Marks of Tufts Neurology so that records of treatment from that physician can be obtained. Following receipt of a completed release form, records from Dr. Marks of Tufts Neurology should be requested. If no records are provided, the Veteran should be notified of such. If the requested records are not available, the Veteran should be notified of such. 2. Obtain all available records contained in VA VISTA Imaging from Dr. Marks. If the requested records are not available, the Veteran should be notified of such. 3. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record and readjudicate the claims for increased ratings for the period prior to October 26, 2012, for degenerative disc disease of the lumbar spine with sciatica of the left lower extremity and sciatica of the right lower extremity. If the benefits sought on appeal remain denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs